Obama Judicial Nominees in Trouble

13 May 2014

President Barack Obama has a serious challenge next week with judicial nominees. Despite changing Senate rules to end filibusters and to confirm nominees with 51 votes, two of Obama’s picks to the federal courts are in jeopardy, with a possible showdown looming next Tuesday.

An unusual coalition has lined up against Prof. David Barron (pictured, left) of Harvard Law School, nominated to the U.S. Court of Appeals for the First Circuit.

Conservatives oppose him for a host of reasons. At the heart of it is his criticism of judges who regard themselves as bound by any fixed meaning to the words of the Constitution, saying they should regard it as a “dynamic document” whose meaning can change over time.

This nominee to the Boston-based federal appeals court also specifically praised judges who enact social change before popular support achieves such change through elected leaders. He further faults judges who focus on following precedent and the words of statutes and regulations as an “awfully cramped and technical” style of deciding cases.

Barron further aggravated conservatives in going beyond praising the Supreme Court’s 2003 Kelo decision, which allowed government to seize private land even when they were not putting it to public use, saying the courts should go further, displacing state and local government when it comes to property rights. Critics say the only area he would support more state or local authority would be to create a vastly larger regulatory regime for businesses.

However, liberals groups led by the ACLU are also blasting Barron. As temporary head of the Justice Department’s elite Office of Legal Counsel, Barron authored a legal memorandum for Obama to kill Americans with drones. The ACLU claims Barron is likely the only “federal government lawyer in modern American history” to sign “a legal opinion authorizing, without any judicial order, the killing of an American citizen away from a battlefield.”

The other nominee is Judge Michael Boggs (pictured, right), who currently sits on the Georgia Court of Appeals. Obama nominated Boggs to the U.S. District Court for the Northern District of Georgia.

It is rare for opposition groups to commit their resources to a trial-court nominee, usually keeping their powder dry for the federal appeals court or especially the Supreme Court. Nominating Boggs was part of a deal with Sens. Saxby Chambliss and Johnny Isakson–both Republicans representing the Peach State–to support two of Obama’s preferred nominees to the U.S. Court of Appeals for the Eleventh Circuit, with jurisdiction over Georgia, Alabama, and Florida.

As a state legislator, Boggs voted for a constitutional amendment defining marriage as one man with one woman. He also voted to keep the Confederate flag as part of the Peach State’s flag.

The L.A. Timesquotes Rep. David Scott (D-GA) as saying nominating Boggs “will go down in history as one of the worst acts of this president.” Scott–who is black–says Obama should identify specifically with black Americans against Boggs and say he is unwilling to appoint him because of what Boggs has done to “my black people.”

Liberal feminist groups also oppose Boggs, who voted for legislation requiring parental consent and involvement for underage girls to have abortions, as well as for laws defining children as “born and unborn.”

The White House continued to stand by both embattled nominees. The Senate could begin acting on these nominations as soon as next week.